Could Silk Road have been a legal website?

For now, Silk Road, the online marketplace of mostly illegal goods, has been shuttered by law enforcement. Ross Ulbricht, thought to be the “Dread Pirate Roberts” who officials pinned as running the deep Internet site, has been accused of dealing drugs and hiring a hitman, among other serious allegations (which he denies). In reading the story and lengthy charges for his arrest, one comes away with a picture of a sloppycriminal whose operations were undone by his own naivety rather than the technical savvy and cryptological firepower of law enforcement.

But his alleged crimes aside, could the operation of the Silk Road website been legal?

After all, it’s not as if Silk Road is alone as a platform that facilitates illegal transactions. Perfectly legal entities have illegal transactions arranged on their servers. Online classified sites have always had trouble weeding out prostitution and other shady arrangements. Cell phone networks carry calls that lay out details for drug deals, among other crimes. E-mail clients and chat apps do the same. Even payment apps process transactions for “groceries” and “party supplies” that are not actually apples and paper plates.

Are they liable too?

Luckily, legislation in the 1990′s was enacted to protect companies from this conflict. Section 230 of the Communications Decency Act (CDA 230) basically says that if a service provider is ignorant of the activities happening on its network, they’re not party to them. If they are simply acting as a “publisher” of information — and not the content creator — then they are protected. The fact that tech companies are not liable for malicious content posted to their sites is what’s given rise to sites like Wikipedia, Craigslist, Facebook and Twitter.

Silk Road’s marketplace clearly dealt in illicit goods, but we’d be kidding ourselves if we believed executives running perfectly legal digital services weren’t aware that their services can be — and are — used for illegal activity. But that still doesn’t make anyone liable.